The Duty of Responsible Administration and the Problem of Police Accountability
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The Duty of Responsible Administration and the Problem of Police Accountability Charles F. Sabel and William H. Simont Many contemporary civil rights claims arisefrom institutionalactivity that, while troubling,is neither malicious nor egregiously reckless. When lawmakers find themselves unable to produce substantive rules for such activity, they often turn to regulating the actors' exercise of discretion. The consequence is an emerging duty of responsible administrationthat requires managers to actively assess the effects of their conduct on civil rights values and make reasonable efforts to mitigate harm to protectedgroups. This doctrinalevolution partially but imperfectly converges with an increasingemphasis in public administration on the need to reassess routines in the light of changing circumstances. We illustratethe doctrinal and administrative changes with a study of policing. We discuss court-supervised reforms in New York and Cincinnati as examples of contrasting trajectories that these developments can take. Both initiatives are better understood in terms of an implicit duty of responsible administrationthan as an expression of any particularsubstantive right. The Cincinnatiintervention, however, reaches more deeply into core administrativepractices and indeed mandates a particular crime control strategy: Problem-Oriented Policing (POP).As such, it typifies a more ambitious type of structural intervention that parallels comprehensive civil rights initiatives in other areas. I. Introduction ................................................................................................ 166 II. The Evolution of Civil Rights Doctrine ............................................... 169 A. The OrganizationalPremises of Classic Doctrine ......................... 170 1. A ntidiscrim ination .................................................................. 170 2. Search and Seizure .................................................................. 172 3. Attribution Under Section 1983 ............................................. 173 4. Structural R elief ..................................................................... 173 t Maurice T. Moore Professor of Law and Arthur Levitt Professor of Law, respectively, Columbia University. We are grateful for advice and encouragement to Jeffrey Fagan, Bernard Harcourt, James Liebman, Tracey Meares, Gillian Metzger, Joanna Schwartz, David Sklansky, Samuel Walker, Robert Weisberg, Theodore Wojcik, and to many participants in Cincinnati police reform who spoke to us about their work, including Jeffrey Blackwell, John Eck, David Epstein, Alphonse Gerhardstein, Daniel Gerard, Mars Herold, Joe Lorenz, and Michael Neville. Yale Journal on Regulation Vol. 33, 2016 B. The Emerging Duty of Responsible Administration....................... 176 1. A ntidiscrim ination ................................................................ 178 2. Search and Seizure ................................................................ 180 3. Attribution Under Section 1983 ............................................ 181 4. Structural R elief .................................................................... 183 111. The Evolution of Policing ........................................................................ 185 A. From Reaction to Proaction .......................................................... 185 B. Two Trajectoriesof Reform ........................................................... 186 1. A ssertive Policing ................................................................. 188 2. Problem-Oriented Policing .................................................. 193 IV . Civil Rights and Police Reform ............................................................... 201 A . Com p liance .................................................................................... 202 B. The H olistic Approach ................................................................... 206 1. Limits of Specialized Reform ................................................. 206 2. Problem-Oriented Policing as a Civil Rights Remedy ............ 209 V . C onclusion ................................................................................................ 2 12 I. Introduction Public officials have a duty of responsible administration that consists of three elements. It requires that officials articulate reflectively the policies and principles that govern their work. It demands that they monitor the activities of peers and subordinates to induce compliance with these policies and principles. And finally, the duty mandates frequent reassessment of these policies and principles in light of the officials' own experience and that of comparable institutions. The "duty of responsible administration" is our name for some converging trends in constitutional law, common law, and statutes. The term usefully connotes developments across a range of fields. It resonates with interpretations of the constitutional Due Process and Take Care Clauses that entail obligations of general proactive administration.' However, the most important recent authority for the duty arises from efforts to elaborate provisions of substantive civil rights law. Where courts or legislatures cannot mandate specific substantive directives, they often turn to regulating the ways officials give content to their discretion. Recurring procedural themes in the elaboration of various substantive doctrines suggest a set of implicit overarching norms. In a reversal of a process 1. Jerry L. Mashaw, The Management Side of Due Process: Some Theoretical and Litigation Notes on the Assurance of Accuracy, Fairness, and Timeliness in the Adjudication of Social Welfare Claims, 59 CORNELL L. REV. 772 (1974) (suggesting that "due process" entails general proactive administrative duties); Gillian E. Metzger, The Constitutional Duty to Supervise, 124 YALE L.J. 1836, 1875-86 (2015) (considering the Take Care Clause of Article 11 as a source of a duty to supervise subordinate officials). Police Accountability noted by Henry Maine, procedure has been secreted in the interstices of substance.2 At the same time doctrine is becoming more procedural, administrative processes are evolving. Agencies have been moving away from bureaucratic forms of administration. Bureaucracy, as understood in mid-twentieth century America, was a balance of stable, hierarchically promulgated rules and lightly supervised discretion. Yet, this kind of organization no longer seems appropriate for many contemporary problems. Addressing current problems requires both more flexibility than rules permit and more transparency than discretion typically affords. Efficacy depends on frontline initiative but also demands that such initiative be reflective and accountable. Thus, administration is drawn to post- bureaucratic forms of organization that emphasize provisional and easily revised plans, monitoring designed to induce learning as well as compliance, and systematic reassessment on the basis of experience within the agency and in comparable institutions. These developments in civil rights doctrine and in public administration originated independently of each other, but they now converge strongly. Second- generation doctrine turns substantially on notions of reasonableness, and reasonableness tends to be assessed in terms of accepted patterns of administrative practice. Moreover, where administration is bureaucratic, courts must either intervene by imposing rules, which would often inefficiently rigidify administration, or defer to unaccountable discretion, which would often leave lawless practice unremedied. Post-bureaucratic administration makes possible responses that do not carry the disadvantages of either of these courses of action. We illustrate these developments by a discussion of civil rights law, especially as it relates to policing. Scholars have noted the administrative turn in civil rights doctrine.3 The classic Warren and Burger Court era cases have proven inadequate to address many "second-generation" problems. First-generation problems typically involved intentionally harmful or egregiously irresponsible conduct. Classic doctrine often defined liability in terms of individualistic psychological notions such as "discriminatory intent" or "deliberate indifference" and prescribed remedies in the form of bureaucratic-type rules. By contrast, second-generation cases often arise from unreflective or normatively ambiguous conduct that, although troubling, does not fit the psychological premises of classic doctrine. Legislators, judges, and regulators often find that 2. HENRY SUMNER MAINE, DISSERTATIONS ON EARLY LAW AND CUSTOM 389 (1883) ("in the infancy of Courts of Justice,.. substantive law has at first the look of being gradually secreted in the interstices of procedure"). 3. See generally,Samuel R. Bagenstos, The Structural Turn in AntidiscriminationLaw, 94 CAL. L. REV. 1 (2006); Olatunde C. A. Johnson, Disparity Rules, 107 COLUM. L. REV. 374 (2007); Gillian E. Metzger, Administrative Constitutionalism,91 TEX. L. REV. 1897 (2013); Charles F. Sabel & William H. Simon, Contextualizing Regimes: Institutionalization as a Response to the Limits of Interpretationand Policy Engineering, 110 MICH. L. REV. 1265, 1285-91 (2012); Susan Sturm, Second GenerationEmployment Discrimination:A StructuralApproach, 101 COLUM. L. REV. 458 (2001). Yale Journal on Regulation Vol. 33, 2016 they cannot confidently promulgate or apply substantive rules to remedy problems that generate such claims. Thus, they have